Judicial Doubt And The Line Of Bias

Rob Barris only wants the judge to be fair. Who doesn’t, right? Except fair means something different to the Okmulgee County District Attorney than it might mean to others, because Barris seeks to disqualify District Judge Kenneth Adair for being biased against police officers.

The Okmulgee County District Attorney has moved to disqualify one of the area’s two district judges from hearing all cases prosecuted by his office, saying the judge has a bias against law enforcement witnesses.

In a motion filed Monday, District Attorney Rob Barris contends District Judge Kenneth Adair has found that officers’ statements were false in four felony drug-related cases and used that conclusion to make rulings in favor of the defendants in each.

Cops lie? Film at 11. But then, the determination of that any particular police officer’s testimony in any particular case is true or false is a particular determination. It may be that a cop is a habitual liar, or that he fudged details in a specific case to nudge his testimony over a factual hump that might let a guilty defendant walk.

Barris wrote that he has been told Adair also has commented to others about officers — particularly those in Okmulgee — of having a “systemic” problem with “testilying.”

What’s meant by a “systemic” problem is a bit harder to address. Is Barris arguing that the judge approaches all cops as testiliars, either incapable of telling the truth, routinely fudging the facts to say whatever will achieve conviction or part of a “system” that either rewards lies or doesn’t frown upon them?

As a result of the disqualification motion, Adair on Wednesday stayed proceedings in more than 200 cases assigned to his court until December pending a hearing set for Aug. 28-30 and, if needed, an appeal on any decision made.

Barris declined to comment beyond his statements in the motion.

When the challenge is directed at one of two judges, the impact is going to be felt.

The motion has frustrated defense lawyers with clients in Okmulgee County, with two attorneys telling the Tulsa World that Barris is trying to punish Adair for working to verify the testimony that law enforcement officers give in his courtroom.

“It’s going to cause a chilling effect, I think, on judges in the future being able to scrutinize an officer’s testimony like they would any other person in the courtroom,” said Okmulgee-based attorney Justin Mosteller, who has four clients due in Adair’s courtroom within the next month.

No doubt the defense bar is going nuts over the District Attorney’s attack on the judge for doubting his cops, for verifying the truthfulness of their allegations, for not going with the odds when performing the task for which judges get paid despite their nearly complete inability to accurately perform the job.

Despite what Judge Judy says, who possesses special voodoo that enables her to berate a witness in three words or less for lying, judges have no magic power to decide which of two otherwise credible witnesses, two reasonable but conflicting versions of the narrative, are true. To physically check a crime scene may serve to reveal that testimony that appeared on its surface to be credible is not can break the logjam, but that isn’t often possible.

The question thus comes down to the presumption of regularity, whether it is presumed that a cop will testify truthfully until proven otherwise, such that a defendant or defense witness who disputes the police officer’s testimony must not be truthful. In a fair world, where a judge has no basis to distinguish one from the other because both are generally credible, the defendant would win. It’s not that the judge has to find the cop lying, as much as not find the cop so credible that his testimony per se trumps that of the defense. Unfortunately, it doesn’t tend to work that way.

It’s likely that many readers here will take no issue with a judge embracing a broad presumption of systemic testilying, as it conforms with our bias and experience. Be careful about being too gleeful about it. That a judge is open to the possibility that a cop’s testimony is false is an unusual, and wondrous thing, but it’s no better to presume cops to be liars than to believe cops to be inherently truthful.

Cops are no more nor less deserving of skeptical scrutiny than any other witness, and they do lie, though the proof isn’t that their lips are moving. A healthy doubt isn’t bias, even if it makes a prosecutor’s job harder. A presumption of testilying, however, may be a doubt too far.

Poor Rob’s problem may not be an unbalanced Judge Adair, but rather the beat downs that local defense attorney Jay Ramey is dishing out to many of the DAs in northeast Oklahoma. In the past 4 years alone, he nabbed 3 of the 4 suppressions discussed above, and claims another 2-3 suppressions/dismissals in Adair’s Okmulgee district court, and 8 more throughout northeastern Oklahoma.

With Oklahoma’s “Texas Law Hawk” ruthlessly schooling careless LEOs and over-eager prosecutors, a judge just might learn a few things too.

I didn’t want to derail the thrust of your post and its comments by bragging about but I posit that he’s the DA’s real problem, not the judge.

Thanks for the accolades. I do my best. Judge Adair is a great judge to practice in front of because he is fair, believes in Constitutional rights, and is not afraid to question police testimony when their testimony varies greatly from their initial report, the preliminary hearing, and then a later suppression hearing. I do agree that 4 specific cases cited by the DA is hardly enough to contend some sort of general bias by the judge. But, on the other hand, 4 cases is many for a judge to question the veracity of the police. Most judges will NEVER question the veracity of the police.

But the important thing to remember is that the DA almost always gets their way in Okmulgee County. Attorneys, including me, do not always win suppression hearings. If we ask Judge Adair to determine the sentence for our client, we do always get what we want. Just like most other counties the DA wins the majority of the time. But, especially in Okmulgee County, the DA thinks they are supposed to get their way EVERY time, and a judge questioning police officers’ testimony in 4 cases over a period of several years is not going to be tolerated.

I’m writing a book about “why police lie.” As a former cop, I have no hesitation to expect a cop to testily, at least about some things. For example, police will often lie knowing that if the facts are exaggerated, it will cause the judge to be angry and give the defendant a harsher sentence (a good example is the claim that the defendant was foul mouthed when he or she wasn’t). Further, in my experience many judges don’t care if a cop lies if the defendant is actually guilty. One of the first things I heard as a new cop was, “it is ok to lie to falsely convict an ‘innocent’ bad guy because they have committed crimes before but just haven’t been caught.”

In my book, I am also going to demonstrate how cops can physically make a person appear to be resisting arrest, when it is actually the cops causing the illusion of resisting. Even with a video, it is difficult to detect.

I will actually promote my book before long (it’s still being written), but I plan for it to be free, mostly because I have inside information on the North Dakota Gordon Kahl case where he murdered two U.S. Marshals. Kahl was later murdered by the FBI in Missouri by house-fire (for the record, I am not a tax protester, I just don’t like police dishonesty, the main subject of my book). That is, the FBI lied about Kahl’s murder being an accident.

At age 63, I need to get the information out while I’m still alive.

I won’t promote the book here, per your wishes, but if you happen to see it next year, feel free to get it. I will say no more on the subject.

Scott H. Greenfield

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